Basic Will

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Since state laws and the needs of different individuals vary greatly, there is no standard, uniform will that works in 100% of cases. Nonetheless, we can paint what a basic will might look like and explain the meaning behind the various clauses it contains.

Tip: Just In Case Estates makes writing your own valid will easy, convenient, and affordable with plans starting at just $88. Our document drafting software allows you to detail your wishes in way that complies with the requirements of your state.

We’ll review a sample, fictitious will for George Washington. We’ll analyze the will piece by piece, but first, let’s see it in its entirety.

Sample Will of George Washington

I, George Washington, of 3200 Mount Vernon Memorial Highway, Mount Vernon, Virginia, make this my Will, and I revoke all Wills and Codicils previously made by me.

Article II. I direct that all my debts and funeral expenses be paid as soon after my death as may be convenient.

Article III. If my wife, Martha Washington, survives me, I give to my wife all my interest in the real property and the improvements thereto located at 3200 Mount Vernon Highway, Mount Vernon, Virginia.

Article IV. If my wife does not survive me, I give to my son John Parke Custis the sum of ten thousand dollars ($10,000).

Article V. I hereby direct my Executors to divide into two equal shares all the rest, residue, and remainder of my property, real, personal, and of any nature whatsoever and wheresoever situate, and I hereby give the said two equal shares (each, an “Equal Share”) as follows:

  1. If my wife, Martha Washington, survives me, then I give to my wife the First Equal Share. If my wife does not survive me, then I direct the First Equal Share be added to the Second Equal Share given in Paragraph 2 of this Article V
  2. I give the Second Equal Share to be distributed equally among my children per stirpes.

Article VI. I direct my Executor to pay from my residuary estate as administration expenses, without apportionment, all estate, inheritance, succession, and death taxes with respect to any property required to be included in my gross estate for purposes of such taxes, whether such property passes under this will or otherwise.

Article VII. I nominate John Adams as the Executor of my will and estate. If John Adams fails to qualify, dies, resigns, or otherwise ceases to serve, I nominate Thomas Jefferson to be Executor of my will and estate.

Article VIII. If my wife does not survive me and I leave minor children surviving me, I appoint as guardian of the person and property of my minor children my friend, James Madison. If James Madison does not qualify or for any reason ceases to serve as guardian, I appoint my friend John Quincy Adams as successor guardian.

SIGNATURES AND ACKNOWLEDGEMENT

I, George Washington, being of sound mind, sign this Will as my free and voluntary act on this 4th day of July, 1776.

____(signature)___

George Washington

The foregoing instrument was signed by the Testator in our presence and declared by him to be the Testator’s Will. We, the undersigned witnesses, sign our names hereunto as witness at the request of the Testator, and to the best of our knowledge believe the testator to be at least eighteen (18) years old, of sound mind, and under no constraint or undue influence. Signed on this 4th day of July, 1776.

____(signature)___

Witness #1 Name

10 Apple Tree Ln, Mount Vernon, VA

____(signature)___

Witness #2 Name

11 Fig Tree Dr, Mount Vernon, VA

Analysis of the Basic Will

Now that you’ve seen what a basic will looks like, let’s learn what each part means.

I, George Washington, of 3200 Mount Vernon Memorial Highway, Mount Vernon, Virginia, make this my Will, and I revoke all Wills and Codicils previously made by me.

The first declaration states the name of the Testator (the person making the will) and his address. Regardless of whether you’ve created a will in the past, most lawyers will also include standard language that revokes all prior wills and codicils (an amendment to a will) to ensure that the provisions of your new will are given full force and effect.

Article II. I direct that all my debts and funeral expenses be paid as soon after my death as may be convenient.

The law dictates that all your debts must be settled prior to distributing any assets under your will.

Article III. If my wife, Martha Washington, survives me, I give to my wife all my interest in the real property and the improvements thereto located at 3200 Mount Vernon Highway, Mount Vernon, Virginia.

Article III gives George’s Mount Vernon property to Martha and is an example of a specific gift to an individual. A specific gift is one that matches to a specific asset. If Martha is alive when George passes, Martha is entitled to that specific Mount Vernon property. The Executor has to give her that property and can’t substitute it with any other.

While there are times that an asset may have to be sold to cover the expenses of the person who passed, that’s pretty uncommon. A specific gift can only be sold if there are no other assets available to satisfy the creditor demands.

Further, the language “if my wife…survives me” makes this Mount Vernon property a conditional gift. If Martha does not out-live George, the gift lapses and is included with the rest of George’s estate.

Article IV. If my wife does not survive me, I give to my son John Parke Custis the sum of ten thousand dollars ($10,000).

This fourth article giving $10,000 to George’s son, John, is an example of a general gift to an individual. A general gift is one where the form of asset is substitutable. One hundred $100 bills are fundamentally no different than five hundred $20 bills.

When an estate’s assets are distributed, specific gifts like the Mount Vernon property to Martha rank first. Next in line are people like John who are getting general gifts. Last are the recipients of the residuary of the estate.

Article V. I hereby direct my Executors to divide into two equal shares all the rest, residue, and remainder of my property, real, personal, and of any nature whatsoever and wheresoever situate, and I hereby give the said two equal shares (each, an “Equal Share”) as follows:

  1. If my wife, Martha Washington, survives me, then I give to my wife the First Equal Share. If my wife does not survive me, then I direct the First Equal Share be added to the Second Equal Share given in Paragraph 2 of this Article IV
  2. I give the Second Equal Share to be distributed equally among my children per stirpes.

We completed George’s specific and general gifts in Articles III and IV and move on to distributing all the rest of his property in this Article V, called the residuary estate. In most estates, the residuary estate is the largest portion of the distribution.

In George’s case, he divides the residuary estate into two equal shares. His wife Martha gets the first share and his children split the second. If Martha passed before George, her first share would be added to the amount distributed to the children.

The children’s share is a class gift that is distributed per stirpes, which means “by branch.” George’s children, John and Martha Jr., each represent a branch of George’s line that each receives a ½ share of the Second Equal Share. If John predeceases George, the ½ share designated for John’s branch passes to John’s children. A per stirpes distribution is a common but not the exclusive method of distribution for residuary estates. We review the benefits and downsides of some others in this article on methods for distribution.

Article VI. I direct my Executor to pay from my residuary estate as administration expenses, without apportionment, all estate, inheritance, succession, and death taxes with respect to any property required to be included in my gross estate for purposes of such taxes, whether such property passes under this will or otherwise.

Depending on the value of your estate and the state in which you and your beneficiaries live, your estate and/or the distributions you make may be subject to state or federal tax. Most Americans are unlikely to hit the $11.59MM federal estate tax threshold (as of 2021), but 17 states have some form of state estate and/or inheritance tax with much lower thresholds.

Article VI in George’s basic will describes who pays such taxes (if any) and how they are paid.

Who pays: By making the taxes an administration expense of the estate, George implicitly seeks to ensure that any tax liability resulting from his gifts are borne by George’s estate and not his beneficiary. If his John is a resident of Maryland and subject to Maryland’s 15% inheritance tax, for example, that inheritance tax would be paid by George’s estate.

How the taxes are paid: George’s will dictates that the taxes are to be paid from the residuary estate. This means that the taxes do not decrease the value of any specific or general gifts, since those gifts are made before the gifts under the residuary estate. For most estates in which the residuary estate is the largest portion of the estate, this method tends to work well. If instead the specific and general gifts represent most of the value of the estate and the beneficiaries of those gifts are different than those under the residuary estate, the beneficiaries of the residuary estate end up paying more than their fair share of the tax burden. The same result also occurs if the principal has moved most of his assets into a revocable trust or other instrument with taxes paid by the residuary estate. For most people, the goal should be to ensure that taxes are paid by those who benefit most from the gifts.

Article VII. I nominate John Adams as the Executor of my will and estate. If John Adams fails to qualify, dies, resigns, or otherwise ceases to serve, I nominate Thomas Jefferson to be Executor of my will and estate.

Article VII names the Executor of George’s estate. Sometimes called the Personal Representative, an Executor is a trusted individual tasked with overseeing the administration of the estate. Choosing the right Executor is an important decision in estate planning because this person(s) is the one responsible for ensuring that your wishes are met to the fullest extent possible.

In addition to naming his friend John Adams as Executor, George names the younger Thomas Jefferson as a successor Executor. Including a backup or multiple backups is a good idea in case the first choice is unable or unwilling to serve.

Article VIII. If my wife does not survive me and I leave minor children surviving me, I appoint as guardian of the person and property of my minor children my friend, James Madison. If James Madison does not qualify or for any reason ceases to serve as guardian, I appoint my friend John Quincy Adams as successor guardian.

The nomination of guardians in Article VIII is for many parents a vital aspect of the estate plan. In instances in which one parent survives, that surviving parent is typically the de facto guardian of the minor children, regardless if the will expresses desires to the contrary. Discussing guardian nominations with individuals who are not your spouse, like a brother or a sister, is critical.

SIGNATURES AND ACKNOWLEDGEMENT

I, George Washington, being of sound mind, sign this Will as my free and voluntary act on this 4th day of July, 1776.

____(signature)___

George Washington

The foregoing instrument was signed by the Testator in our presence and declared by him to be the Testator’s Will. We, the undersigned witnesses, sign our names hereunto as witness at the request of the Testator, and to the best of our knowledge believe the testator to be at least eighteen (18) years old, of sound mind, and under no constraint or undue influence. Signed on this 4th day of July, 1776.

____(signature)___

Witness #1 Name

10 Apple Tree Ln, Mount Vernon, VA

____(signature)___

Witness #2 Name

11 Fig Tree Dr, Mount Vernon, VA

Correctly completing the Signatures and Acknowledgement of a will is essential to ensuring its validity. Our guide to picking good witnesses details the factor that you’ll want to consider when choosing your witnesses. The text itself of the Signatures and Acknowledgement section is also important.

Although state law generally does not demand a set form for the body of most of the rest of the will, many states have suggested forms for the signatures and acknowledgement, or at the very least, required elements that the signatures and acknowledgement must contain. For a will to be valid, state law requires that the person making the will must be of sound mind, understand that by this document he is creating his will, and that he does so as a free and voluntary act with no undue influence. The Signatures and Acknowledgement affirms this understanding by the Testator and the witnesses.

Witnesses include their address on the document to help make it easier to find them should they be called to testify to the proper execution of the will as part of the probate process. In most states, the requirement of the witness testimony in probate court can be dropped by making a will self-proved. To the extent possible, the Testator should seek to self-prove the will by conducting the signing ceremony in the presence of a notary public, as this is likely to speed up and lower the costs of probate court.

Summary

This basic will is an example of what a simple will may look like. Most professionally prepared wills like the kind available through Just In Case Estates include much more detail on the powers and responsibilities of the Executor, instructions on how disputes between multiple executors or beneficiaries should be managed, and provisions detailing certain circumstances under which a distribution to a given beneficiary shall or shall not be made.

Provided that it is executed properly, a basic will that does not contain that other detail and provisions is still equally valid under the law. Where the basic will is silent, the ‘default’ rules specified under state statute will govern.